Methods of Combating Intellectual Property Infringement and Abuse on the Amazon Platform
By: Jill Gastineau
Amazon and other e-commerce sites have completely changed the way we think about shopping. Businesses are able to reach a much larger customer base and customers are able to instantly order goods from the comfort of their homes. However, along with all the benefits these sites provide, they also present a number of issues, especially with respect to intellectual property.
Amazon, in particular, has been involved in a number of lawsuits related to counterfeit goods sold on the website. Thus far, Amazon has avoided any liability by asserting that it is merely a website for third-party sellers to list their goods, not the actual seller. Nonetheless, Amazon has been taking great measures by creating a number of programs to prevent infringement of intellectual property and the sale of counterfeit goods and knockoffs on the site.
Amazon’s Brand Registry program provides sellers a number of benefits including mechanisms to help protect a seller’s brand. Once a seller registers with Amazon’s brand registry, Amazon takes the information provided to proactively remove suspected infringing or inaccurate content. Amazon Brand Registry also provides an easier process for sellers to search for and report suspected violations.
Amazon’s Transparency Program helps prevent counterfeit goods by allowing sellers to enroll in a product serialization service to identify individual units. After a seller enrolls in the Transparency program, the seller can apply the Transparency code to their products. Amazon then scans the codes to confirm only authentic goods are shipped. Customers are similarly able to authenticate the Transparency-enabled goods by using an app on their phone. The Transparency Program also allows sellers the ability to provide customers with other details for the good such as the manufacturing date and location. This serves to increase trust and confidence in both the goods sold and the brand affiliated with the goods.
Finally, in 2019 Amazon began the Neutral Patent Evaluation Procedure. This program provides a more cost-efficient way to combat patent infringement specifically on the Amazon platform. When a patent owner identifies the unauthorized sale of its patented technology, they may submit an Amazon Utility Patent Neutral Evaluation Agreement of the Amazon Standard Identification Number (ASIN) which infringes their patent. Amazon will forward the agreement to each seller of the ASIN at which point each seller can choose to either have their products removed from Amazon or agree to proceed with the agreement. If the seller chooses to proceed, each party submits a fee of $4,000 to the neutral evaluator chosen by Amazon. From there, the evaluator will set forth a schedule for submitting written arguments. Typically, the patent holder has 3 weeks to submit their arguments, the alleged infringer has two weeks to respond, and the patent holder has a week after that to file an optional reply. The evaluator is afforded two weeks to render a decision. If a patent holder has identified significant infringement of its patent on the Amazon platform, this process can be extremely beneficial. It effectively cuts down the litigation process and delivers a result much faster than litigating through the court system. Because the process has been cut down to only written arguments, it also has the effect of reducing attorneys fees.
Ultimately, selling goods on Amazon has the potential to be an incredibly successful endeavor for many intellectual property owners. However, owners should be vigilant in monitoring and enforcing their intellectual property on the platform to prevent any infringement or abuse. Amazon has provided a number of helpful ways to combat infringement and abuse through the above-mentioned programs.
If you have questions or would like to learn more about protecting your intellectual property on the Amazon platform or other e-commerce platforms, please contact us and a member of our Intellectual Property team will follow up with you.
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